Berry v. Iowa Mid-West Land & Livestock Co.

• Decision Date: 06 March 1967
• Docket Number: MID-WEST,No. 3566,3566
• Citation: 424 P.2d 409
• Parties: AI BERRY, Appellant (Plaintiff below), v. IOWALAND AND LIVESTOCK COMPANY, a Corporation, Appellee (Defendantbelow).
• Court: Wyoming Supreme Court

Page 409

424 P.2d 409

AI BERRY, Appellant (Plaintiff below), v. IOWA MID-WEST LAND AND LIVESTOCK COMPANY, a Corporation, Appellee (Defendantbelow).

No. 3566.

Supreme Court of Wyoming.

March 6, 1967.

R. R. Bowman, of Bowman & Garrett, Lovell, for appellant.

Paul B. Godfrey, of Henderson & Godfrey, Cheyenne, for appellee.

Before GRAY, McINTYRE and PARKER, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

Al Berry, claiming to be an employee of Iowa Mid-West Land and Livestock Company, brought suit against his alleged employer for negligence in failing to provide safe equipment. While attempting to make an electrical connection on a 220-volt power line of the Rural Electrification Administration, Berry claims his ladder slipped causing him to grab one of the electric wires. He received burns and electric shock and was rendered unconscious.

The case was tried to a jury. It found for plaintiff and awarded damages in the amount of $7,000. The trial judge, however, found the evidence insufficient to support the verdict and entered judgment for defendant, notwithstanding the verdict. From this judgment the plaintiff has appealed. He makes it clear the single issue is whether there was substantial evidence upon which the jury's verdict for plaintiff could stand.

We must, of course, give to the evidence every reasonable inference which may be drawn in favor of the plaintiff, and we must resolve conflicts in the evidence in plaintiff's favor. But even when we do so, we fail to find any evidence in the record of negligence on the part of defendant which plaintiff did not contribute to or assume the risk of.

The defendant's farm near Otto, Wyoming, had been sold, but defendant reserved the right to keep a band of sheep thereon for a period of time. Plaintiff-Berry had been working as a ranch employee for defendant-liverstock company and was still living on the farm when injured. Defendant admits Berry was paid on April 13, 1965, up to and including April 15, 1965. The accident happened on the morning of April 15, 1965.

Although defendant contended Berry's services had been terminated and that he was not working for defendant at the time of the accident, the jury found otherwise. We find the evidence on the question of whether plaintiff was an employee of defendant at the time of his accident in conflict, and we are bound by the verdict of the jury as far as that issue is concerned.

Also, the evidence was in dispute as to whether defendant's manager and officer in charge, Jack Goggins, who lived in Montana, had instructed Berry to make the electrical connection he was attempting to make when injured. The new occupant of the farm, LeRoy Vossler, had temporarily moved into the bunkhouse. This house was not wired for his electric stove, and he was desirous of having 220-volt electricity brought in so the electric stove could be used. About two weeks before Berry attempted to do the wiring, there was a conversation about a hookup for this stove.

Goggins claims he merely said in casual conversation that Berry, who had previous experience with the kind of electrical work involved, could wire the house. The plaintiff and other witnesses testified Goggins instructed Berry to wire up the stove when he had time. In any event, the total evidence was such that the jury was entitled to believe Goggins had instructed Berry to wire the stove and that Berry was engaged in the performance of work for defendant when injured.

However, even if we accept the proposition that plaintiff was an employee of defendant engaged in the performance of duties for his employer, when injured, we still find no evidence of negligence on the part of defendant which would not be equally chargeable to plaintiff himself.

The theory advanced by plaintiff in his attempt to charge defendant with negligence is that Goggins instructed Berry to wire up the stove; that Goggins made no effort to determine whether plaintiff had proper tools and equipment for the job; and that climbing irons, a safety belt, and insulated gloves would have been proper equipment and would have prevented the accident.

The plaintiff admits he had previous experience in wiring and knew such extra equipment might be necessary. He testified, however, that his employer was not available at the time for him to request additional equipment. Therefore, he proceeded with the work because he 'believed that the wiring could be accomplished with the tools at hand.'

If plaintiff, knowing the dangers involved, nevertheless elected to proceed with what he called the tools at hand because he believed the wiring could be accomplished with such tools, it is difficult to understand why he should be permitted afterward to charge defendant with his own miscalculation. Moreover, with proper care and foresight a ladder can be made sufficiently secure and safe to avoid slipping and the kind of accident plaintiff suffered.

For example, small holes in the ground for legs of the ladder to fit into can...